Circuit Judge, concurring.
■ I concur in part II dealing with a conclusion of no municipal liability and propriety of summary judgment for the City and the County in this case. As to part I, I do not necessarily subscribe to all of the findings made, particularly as to subparts B and D. I do not think it necessary to go into the detail recited by Judge Boggs to rule on the orders granting qualified immunity to the individual defendants.
I also concur in parts IV.A and IV.B that “probable cause for Stemler’s arrest forecloses her false arrest claim” and that “probable cause would negate the possibility of liability under a state-law malicious prosecution theory,” or a false arrest claim. Also, I concur in the conclusion that Stemler may not pursue further a claim that defendant Wince falsified evidence against her in her state criminal trial.
As to part III, the claim on behalf of the deceased Conni Black, I believe that the alleged conduct of the individual police officers supports reversal of their motions to dismiss. I do have reservations about concluding that deliberate indifference may have been averred as a matter of constitutional law, but I would agree with Judge Boggs to the extent he maintains that “the defendants should have known in February of 1994 that their [alleged] actions violated [Black’s constitutional] right.”
I would not cite Nishiyama v. Dickson County, 814 F.2d 277 (6th Cir.1987) (en banc), as persuasive authority in this case. The individual defendants in that case had no direct relationship of any kind with the victim. Furthermore, I am doubtful about the continuing authority of Nishiyama, and I consider it settled in the Sixth Circuit that gross negligence alone may not subject a police officer to § 1983 liability absent a showing of willful disposition to harm or to deliberately ignore the plight of the victim in custody. Lewellen v. Metropolitan Gov’t of Nashville & Davidson County, 34 F.3d 345, 351 (6th Cir.1994).
Lewellen also holds that liability of a state actor may arise from some “action that is ‘arbitrary in the constitutional sense.’ ” This is a higher standard than gross negligence. Lewellen requires some designed and intentional activity on the part of the state actor to harm or punish someone. Id. And in this ease, there was a sufficient allegation of arbitrary conduct on the part of some defendants intentionally designed to injure or punish Conni Black. I would hold simply that Black’s estate has alleged sufficient facts to survive a motion to dismiss and that we should therefore reverse the contrary holding of the district court and remand for further consideration of the existence and proof of a constitutional tort. To put it another way, the alleged conduct of certain individual defendants may have been sufficiently shocking to the conscience that the Black claim should not have been dismissed against those defendants. See Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). I am, however, particularly reluctant to expand upon the “highly elastic notion of substantive due process.” Lewellen, 34 F.3d at 351.
I wholeheartedly agree with Judge Boggs’ conclusion that “under any definition of the term, Black was in the defendant officer’s custody at the time she was forced into Kritis’ truck.” The district court erred, in my view, in holding that Black, “who was very intoxicated ... was not taken into custody in the ordinary sense.” I believe there is adequate averment and showing that Black was effectually taken into custody. The district court therefore erred, I believe, in granting motions to dismiss as to the individual defendants.
I next address part IV.C, Stemler’s remaining claims against the individual officers based upon an alleged equal protection violation, which. Judge Boggs characterizes as alleged selective prosecution. I cannot *876equate an alleged animus against Stemler because of a perception about her sexual proclivities with discrimination based upon race, sex, national origin, or the like.1 There may be enough basis in Stemler’s claim that some individual defendants based their law enforcement actions on some arbitrary and capricious classification or selectively enforced the laws on drunken driving, public intoxication, or public endangerment to warrant our reversing the dismissal of this claim. However, I do not reach the categorical decision of Judge Boggs that disapproval of Stemler’s perceived sexual orientation was the sole, or even a significant, basis for her arrest by the defendants, and that this action therefore violated the equal protection clause.
Nov. 13, 1997The district court, upon remand, must also determine the effect, if any, on the federal claims asserted in this case of any future decision of the Kentucky Court of Appeals concerning the individual claims of Stemler and on behalf of Black. There is also the question whether plaintiffs impermissibly split them causes of action in these cases. They could have filed the § 1983 actions in state court. See Kabealo v. Davis, 829 F.Supp. 923, 928 (S.D.Ohio 1993) (splitting state claims from federal claims “would result in a needless duplication of expense and judicial resources”); Administaff, Inc. v. Kaster, 799 F.Supp. 685, 690 (W.D.Tex.1992) (“Federal and state claims ‘inexorably tied together’ are best left together”).
I would affirm the decision of the district court as to the municipal defendants, and as to defendants in their official capacities. I would affirm dismissal of Stemler’s claims of false arrest, malicious prosecution, and evidence falsification. I would REVERSE and REMAND for further proceedings and consideration of alleged federal constitutional torts in light of the decision set out herein, and in light of the Kentucky appellate decision on the remaining claims.2
ORDER
Upon consideration of the petition for rehearing filed by the appellees,
It is ORDERED that the petition for rehearing be, and it hereby is, DENIED.
Judge Wellford would adhere to his separate opinion and would augment it as attached.
HARRY W. WELLFORD, Circuit Judge,would adhere to his separate opinion. I would augment it by adding that defendant officers had a clear duty under the circumstances not to place the victim Black in harm’s way by placing her in Kritis’ vehicle while she was obviously severely intoxicated. Such defendants “must both be aware of facts from which an inference could be drawn that a substantial risk of serious harm existed], and [they] must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Under the circumstances at the time, a special relationship existed between the officers and Black which extended the chain of causative events.
. I believe Romer v. Evans, - U.S. -, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), simply holds that a statute purporting to deprive homosexuals of any special protections under state law has no rational relation to legitimate state government purposes. Furthermore, Romer was decided long after these defendants acted in this case.
. I also note the death of the Boone County Sheriff.